Opposition Senators oppose the Family Law Amendment (Parenting
Management Hearings) Bill 2017.
Of all the decisions that judges are required to make, the heaviest
burden arises when in the decision over how, when, where, and with whom a child
will spend their childhood.
This Bill proposes, as a pilot program, an alternative radical departure
from the current manner in which these important decisions are determined. The
Bill provides for the creation of a non-judicial panel, comprised of lay
persons without legal training or experience of the crucial decisions that are
made in respect of children following family breakdown. This panel would be
statutorily empowered to make binding decisions about parenting matters.
The Panel would have complete discretion over the procedure for the
Parenting Management Hearing (PMH) and can inform itself in any way it thinks
fit. There ordinary rules of evidence and procedural fairness will be departed
from. The possibility that this could occasion prejudice or lead to outcomes
based on erroneous evidence which would be accepted in a court called on to
make the same determination is likely productive of gross unfairness.
The Panel's power, under proposed s 11ME, includes the ability to
direct a party to give the Panel information or documents, whether or not the
documents or information are relevant to the resolution of the dispute is an
extraordinary departure from the proper processes that limit the evidence that
can be adduced for the purpose of dispute resolution. In a fundamentally
improper way, the Bill proposes that a failure to provide information sought by
the panel under section 11ME, whether or not it is actually relevant, could
lead to a criminal penalty being imposed of up to twelve months imprisonment..
Given that the purpose of this panel is to provide a setting in which family
disputes may be resolved without proceedings commencing in court, it is
extraordinary that a failure to abide by the direction of the panel may lead to
a penalty that could be harsher than the punishment ordered by a court for
Opposition Senators have other serious concerns about the PMH which
Matters involving family violence will not be prevented from
inclusion in the PMH pilot.
Parties do not have the right to be legally represented when
appearing before the PMH.
There is no merits review available for a determination of a
Parenting Management Panel.
A Radical Change to Family Law
Family law proceedings can already be dealt with in a less adversarial
manner under Division 12A of Part VII of the Family Law Act but Parenting
Management Hearings would be a radical departure to even that less adversarial
approach, they would be conducted in an inquisitorial manner.
The Women's Legal Services Australia submission stated in its submission
to the Committee:-
While there is merit in considering an inquisitorial model
(in contrast to the traditional adversarial model) it is important that any
such model is developed with careful consideration and a particular focus on
protections required for victims-survivors of family violence and in matters
relating to child abuse. It is also important that any new model is accessible
– for example, for Aboriginal and Torres Strait Islander communities,
culturally and linguistically diverse (CALD) communities, people with
disabilities, LGBTIQ+ communities, people in regional, rural and remote areas.
The Chief Justice of the Family Court, Chief Justice Pascoe, in his
submission also raised some concerns about PMHs being conducted in an
inquisitorial manner. He said:
...the Bill provides for the Panel to inform itself in any way
it thinks fit in conducting a Parenting Management Hearing. A concern that the
Court has consistently expressed is that this departs significantly from the
principle of procedural fairness, and that is perplexing, given that a lack of
procedural fairness is a prime circumstance allowing for an appeal to the
Federal Circuit Court of Australia.
While Opposition Senators recognise there is merit in looking at
inquisitorial models of family law decision making we agree with key submitters
that stakeholders have not been given sufficient input into the bill before the
Parliament. As the the Hon. Peter Rose AM QC said in his opening statement to
the Committee 'children and families are far too important to be made the
subject of an experiment'.
Ms Zoe Rathus AM in her submission said about the timing of the Bill:
The timing of this Bill is rather strange and does not assist
to build confidence in future consultation and review. The funding for the PMHP
was allocated in the federal budget in May 2017. 1 On the very evening the
budget was brought down Professor Patrick Parkinson presented an address in the
Banco Court of the Supreme Court of Queensland in which he described his vision
for such a tribunal.2 At that stage there had been no public consultation on
his vision, but in his address he advised that in January, 2017, Brian Cox SC,
Dr Nicky McWilliam and he had provided a 'private paper for the Government'
which had 'presented a comprehensive agenda ... for family law reform' and
contained ideas he had canvassed that evening. So it seems that the money was
allocated before the family law community had been given an opportunity to
consider and comment on this extremely new, novel and untested tribunal model.
Ms Zoe Rathus AM, like others before the Committee, argued that the
Parliament should wait for the Australian Law Reform Commission (ALRC) to
report on the Family Law System before considering legislating:
It worries me that the number of submissions received is not
particularly reflective yet of an engaged family law community, so if this goes
ahead then it's really going ahead without the benefit of the kind of discussion
and debate that I would have thought should come before something as
innovative—'innovative' is a very positive term, and maybe that's fine because
it is innovative, but it's also new, untested and extremely different to our
current ways of doing things. I'm not saying that we should never do anything
differently; I'm saying if we are going to do it, let's involve more
information about it, let's do better backgrounding before we start it.
Former Family Court Justice, the Hon. Peter Rose noted that:
...the bill incorporates large portions of part VII of the
Family Law Act which makes it compulsory—not a matter of discretion—to decide
the best interests of the child by making various findings of fact about a
whole host of factors and, in doing so, you have to apply legal principles that
have been the subject of jurisprudence for quite some time. If a body charged
with making some determination about children thinks, 'We're going to knock
this over in a couple of hours and there'll be a quick decision,' if you place
yourself in the position of a parent or someone else who has an interest in the
care of a child, that's providing, in effect, a second-class system because you
happen to be unrepresented and you can't afford legal aid.
As the ALRC is already undertaking a comprehensive review of the family
law system, Labor Senators believe that such a radical change would be better
considered by the ALRC in their review before being implemented.
Impact on Victims of Domestic
Opposition Senators are particularly concerned about the potential for
unjust outcomes for victims and survivors of family violence and their children
who participate in Parenting Management Hearings.
Opposition Senators also have regard for the views of the Women's Legal
Services Australia, as Ms Liz Snell expressed to the committee:
...we recognise there are limitations to an adversarial
system and that the current system is failing women and children who have
experienced violence. However, when the outcomes of untested processes, such as
the introduction of parent management hearings, can have enormous ramifications
on the safety of women and children, we advocate that any new model should be
based on research and evidence and informed every step of the way by domestic
and family violence experts.
Ms Snell, went on to say that Women's Legal Services support reform in
this area and await the conclusion of the Australian Law Reform Commission's
comprehensive review of the family law system.
Opposition Senators note that a number of other key submitters also
argued very strongly that they were in agreement with the position taken by
Women's Legal Services Australia's submission.
Ms Annette Gillespie, Chief Executive Officer, of safe steps Family
Violence Response Centre raised concerns that a lack of access to legal
representation was a key concern for victims of violence and agreed that it
should not proceed without further investigation:
Our position is one of support for the submission made by
Women's Legal Services Australia, and we have reached that position by
considering the feedback we received from the women and children who we provide
service to across the state of Victoria, particularly through our family
advocacy and support services program.
The feedback we receive from our clients frequently comes
back to this: they feel they are best placed to receive a fair outcome and to
feel supported within the court system where they have access to legal
They find the courts foreign, adversarial and overwhelming to
navigate, and legal representation assists them to manage this process. Whilst
we support many of the recommended changes put forward within the family
violence and other measures bill, we are concerned that others represent a
shifting of the problem rather than a response to its root cause, which is a
lack of access to professional legal representation and a lack of training
across the court system in identifying and responding to family violence.
We're opposed to the parenting management hearings bill
proceeding in its current form and recommend a more thorough investigation of
the proposal's merits.
Ms Karen Willis, Executive Officer, Rape & Domestic Violence
Services Australia told the committee that that they weren't satisfied with the
consultation, evidence base and research underpinning the development of the
....the evidence on which it was based, when we checked it,
really isn't terribly robust. The evidence was based on some work done where
basically six people, three judges and three magistrates, were interviewed.
Unfortunately, with people who are in positions of doing things like that,
often their view will be influenced by 'what is best for me and what I think'.
There weren't actually any clients of those courts involved in that review of
that particular model. And of course the model that was being reviewed and
evaluated, on which this is based—well, the recommendation here is different.
So we're a bit concerned about the evidence base and we do think that, if we're
going to be doing anything in the family law area, it needs to be evidence
Opposition Senators agree with concerns that the original intention of
the legislation was not designed from the outset to deal with family and
domestic violence, and that these considerations should have been fundamental
to its development. In this regard we also agree with Ms Wills who told the
We also are concerned that the model tacked on concerns about
domestic violence rather than being foundational. We are dealing overwhelmingly
with domestic violence situations here; how are we going to work with parenting
models? What we actually said with this model is, 'Let's figure out parenting
models. Oh, yes, some might have domestic violence; we need to think about how
we're going to manage that.' And I'm not sure that that was a good way of doing
Ms Kajhal McIntyre, Legal Researcher and Project Worker, Rape &
Domestic Violence Services Australia also argued that the protections for those
who have experienced family violence were inadequate.
We do note, of course, that there are several protections in
this bill for people with family violence, but we suggest that they just don't
go far enough. Because the model was originally designed not to deal with
family violence and it was only at the last minute that the department made the
determination that it would, in fact, cover family violence matters, the
protections have been added on as an afterthought. We would say that what we've
ended up with is an uncomfortable compromise where there's a large amount of
discretion in the panel as to whether or not they do hear family violence
matters. We've heard a lot about what a complex versus a non-complex family
violence matter looks like. We would say that almost all family violence
matters are incredibly complex and it's not clear from the bill which matters
are too complex for them to hear or how they'll be making that determination,
so that's of great concern to us.
No Right to Legal Representation
Opposition Senators are concerned about the lack of a right to legal
representation for those parties appearing before a Parenting Management
Ms Kajhal McIntyre, Legal Researcher and Project Worker, Rape &
Domestic Violence Services Australia also raised concerns about the lack of
I completely agree that the current system is not working. I
think there are some really valuable points in this proposal. We're completely
in support of the multidisciplinary nature of the panel. We're completely in
support of the inquisitorial format. What we do have a significant issue with
is the lack of legal representation, and I think that that is an incredible
difference from the current system. That's not to say that legal representation
is going to fix violence or to mean that none of those issues exist anymore—we
know that that's not the case—but at the same time, when you put somebody in a
room without an advocate and you have only two hours to deal with incredibly
complex issues, there's just no way that you can guarantee that those issues.
No Right to a Merits Review
Opposition Senators are concerned that there is no avenue for a merits
review of a determination of a Parenting Management Hearing Panel. The only
avenue of appeal from a determination is on a question of law. As the process
of hearing is inquisitorial and parties will be unrepresented, parties may be
unaware of their rights and when those rights will crystalise.
The Law Council of Australia's submission noted:
This is a more limited right of appeal than lies from a
decision of a judicial registrar or senior registrar of the Family Court (which
proceeds by way of review on a hearing de novo) or even on appeal from a
parenting decision by a single judge of either the Federal Circuit Court or
Family Court to the appeal division of the Family Court.
The Bar Association of Victoria also express their concerns about the
appeal provisions in the bill:
Briefly, the Association also has concerns in relation to the
appeal provisions of the Bill. Section 11Q provides that a party may appeal to
the Federal Circuit Court on a question of law only. However, subsection (5)
provides that the Federal Circuit Court may make findings of fact. In
circumstances where cross examination is to be the exception, it is unclear how
the Federal Circuit Court is to make such findings. Further, an appeal as to
law only appears to be contrary to subsection (6) which provides that the Court
may generally receive evidence. It is submitted that these appeal provisions
ought be reconsidered.
Consent to Submit to Parenting
Opposition Senators are concerned that unrepresented parties will be in
a position to give fully informed consent before submitting themselves to a
Parenting Management Hearing.
The Law Council of Australia in their submission also expressed concerns
The simple conundrum or internal contradiction is that very
few unrepresented litigants will be in a position to properly weigh up the
advantages and disadvantages of the Panel and make an informed consent. The
promise, or hope, of an earlier final hearing will be a powerful motivator in
many cases. In most cases 'consent' will be a mirage and a consent in form
Opposition Senators are also concerned that Parenting Management
Hearings may not be capable of withstanding constitutional challenge.
The proposed coercive power of direction in s 11ME may have the ultimate
result of a penalty being imposed by a Court. The exercise of such a directions
power is quasi-judicial in nature and may be problematic in light of the
separation of judicial and executive power set out in Chapter III of the
Constitution. The lack of a review mechanism by way of a merits review is also
likely to bring it outside of its constitutional authority.
The Victorian Bar Association briefly touched on the constitutionality
of Parenting Management Hearings in their submission:
Owing to the limited time in which to consider and respond to
the Bill, this submission does not consider the constitutional validity of the
Bill or various provisions within it including its the very broad delegation of
powers (see s 11WB). However, the Association holds concerns in this regard,
particularly in Family Law Amendment (Parenting Management Hearings) Bill 2017
Submission 23 2 light of the High Court decisions of (for example) Harris v
Caladine  HCA 9 and Lane v Morrison  HCA 29.
The Attorney-General's Department estimated that 500 families would
submit themselves to Parenting Management Hearings during the proposed pilot.
It would be likely that more than one thousand children may have determinations
made about their lives.
As Zoe Rathus AM said in her evidence to the committee:
I suppose the problem for people who go through that is that
it doesn't matter to them that it was a pilot. They get orders. Whatever
happens to them is as permanent to them as though it were an order of the High
Court, in a way. There's nothing pilot about the outcomes for them. They are
real outcomes that they then have to live with.
Opposition Senators believe that we should not be subjecting children to
an experiment. The decisions made by a Parenting Management Panel may
seriously change the emotional wellbeing of those children.
Opposition Senators recommend that the bill not be passed.
Senator Louise Pratt
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